CITATION: R. v. Raza, 2017 ONSC 7090
COURT FILE NO.: M203/17 DATE: 20171128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ASIM RAZA
M. Feindel, for the Crown
K. Bryan, for the Applicant
HEARD: November 27, 2017
REASONS FOR DECISION
ducharme j.
[1] Asim Raza brings this application for the extraordinary remedies of certiorari with mandamus in aid, seeking an order quashing the order of the Honourable Justice Merenda dated July 10, 2017 and entering a stay of proceedings pursuant to section 672.851 of the Criminal Code.
[2] Mr. Raza is a young man with intellectual disabilities who is unfit to stand trial for charges of sexual assault and invitation to sexual touching in relation to an incident on June 17, 2010. For the six years since being found unfit in 2011, he has been followed under the jurisdiction of the Ontario Review Board (“the ORB”) pursuant to Part XX.1 of the Code. The ORB is a quasi-judicial expert tribunal specialized in the management of the rehabilitation and risk evaluation of NCR and unfit accused. In 2016, a five-member panel of the ORB unanimously found that Mr. Raza is permanently unfit and does not pose a significant threat to the safety of the public. As such, the ORB recommended that the court conduct an inquiry pursuant to section 672.851(1) of the Code to determine whether to stay the proceedings against Mr. Raza.
[3] The inquiry was heard in the Ontario Court of Justice before Justice Merenda (“the Hearing Judge”) on June 28, 2017 (“the Inquiry Hearing”). The Court was tasked with considering the three-part test in s. 672.851(7), namely whether the Court is satisfied that: (a) the accused is permanently unfit; (b) the accused does not pose a significant threat to the safety of the public; and (c) a stay is in the interests of the proper administration of justice, having regard to the mandatory factors in s. 672.851(8).
[4] The Crown opposed the application only on the issue of significant threat. Forensic psychiatrist Dr. Mark Pearce provided expert opinion evidence that Mr. Raza does not pose a significant threat to the safety of the public, and that there had been no change in circumstances since the Board’s decision on that same point in August 2016.
[5] On July 10, 2017, Justice Merenda dismissed the application for a stay. He departed from the ORB’s finding and the uncontroverted expert evidence that Mr. Raza does not pose a significant threat to the safety of the public. Further, he ruled that a stay was not in the interests of the proper administration of justice.
ISSUES:
(1) Is Certiorari available in a Case Such As This to Correct errors of law on the face of the record, or is it only available to correct errors of jurisdiction?
(2) Did the Hearing Judge Commit a Jurisdictional Error or an Error of Law on the Face of the Record?
i. An error of law by failing to conform to the “principles of judicial comity”;
ii. An error of law by doubting that the Applicant would be supervised;
iii. “Jurisdictional error” in its understanding of the test for significant threat; and
iv. An error of jurisdiction by failing to consider the mandatory statutory criterion of “any effect on public confidence in the administration of justice”.
(3) If certiorari lies to correct any or all of the errors alleged in this case, should the remedy be withheld because Parliament has limited the scope of review permissible under section 672.851?
ANALYSIS
(1) Is Certiorari available in a Case Such As This to Correct errors of law on the face of the record, or is it only available to correct errors of jurisdiction?
[6] Certiorari is not available to correct “errors of law on the face of the record” in criminal matters. The Application challenges a decision that was made by the lower court in accordance with section 672.851 of the Criminal Code. Accordingly, certiorari is only available to correct “errors of jurisdiction” or errors, such as a denial of natural justice, which go to jurisdiction.
[7] Justice Hill offered a comprehensive summary of the relevant law in R. v. J.V. 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027 (S.C.J.):
Certiorari and Natural Justice
90 In review of criminal proceedings, the extraordinary remedy of certiorari, including a motion to quash, is limited to review of loss of jurisdiction, an absence or refusal of jurisdiction, or an excess of jurisdiction: Forsythe v. The Queen (1980), 1980 CanLII 15 (SCC), 53 C.C.C. (2d) 225 (S.C.C.) at 228-9 per Laskin C.J.C.; Patterson v. The Queen (1970), 1970 CanLII 180 (SCC), 2 C.C.C. (2d) 227 (S.C.C.) at 229 per Judson J.
91 Certiorari lies only where the error goes to jurisdiction and not non-jurisdictional error: Dubois v. The Queen (1986), 1986 CanLII 60 (SCC), 25 C.C.C. (3d) 221 (S.C.C.) at 224 per Estey J. Sometimes referred to as “the right to be wrong,” the incorrectness of a decision, or an error of law, made within the court’s assigned jurisdiction does not constitute jurisdictional error: Russell v. The Queen (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 (S.C.C.) at 10 per McLachlin C.J.C.; Forsythe v. The Queen, supra at 235; Dubois v. The Queen, supra at 229-231; Re Corbeil and The Queen (1986), 1986 CanLII 4650 (ON CA), 27 C.C.C. (3d) 245 (Ont. C.A.) at 251 per Lacourcière J.A.
92 A denial of natural justice goes to jurisdiction: Forsythe v. The Queen, supra at 229; Skogman v. The Queen (1984), 1984 CanLII 22 (SCC), 13 C.C.C. (3d) 161 (S.C.C.) at 167 per Estey J. A breach of the principles of natural justice “is taken as an excess of jurisdiction”: Russell v. The Queen, supra at 10.
[8] In the recent decision of R. v. Walker (2016), 2016 ONSC 2299, 130 O.R. (3d) 272 (S.C.J.) Justice Code, relying on the dicta of the Chief Justice of the Supreme Court, explicitly affirmed that in criminal matters certiorari is not available to correct “errors of law on the face of the record”:
In criminal proceedings, certiorari is no longer available on the basis of “error of law on the face of the record.” It is limited to jurisdictional error. In R. v. Russell (2001) 2001 SCC 53, 157 C.C.C. (3d) 1 at para. 19 (S.C.C.), McLachlin C.J.C. gave the unanimous judgment of the full court and stated:
The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: R. v. Skogman, (1984) 1984 CanLII 22 (SCC), 13 C.C.C. (3D) 161. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, (1980) 1980 CanLII 15 (SCC), 53 C.C.C. (2d) 225 (S.C.C.)).
[9] The purpose of the writ is not to function as an “appeal”; it is not available to the reviewing court to reconsider or re-evaluate the decision of the lower court. The purpose of the writ is to ensure that the lower court carried out its task in accordance with its statutory jurisdiction. Errors of law fall within the scope of the lower court’s right to be wrong.
[10] In R. v. Mullings, the Superior Court drew on some jurisprudence where the Supreme Court has, in certain circumstances, permitted applications for certiorari in criminal matters on the basis of an “error of law on the face of the record” alone. Where the party seeking relief is a “third party” to the proceeding and where the decision affecting their rights is final, Dagenais v. CBC and R. v. Cunningham are authority that certiorari is available for both “errors of jurisdiction” and “errors of law on the face of the record.” Justice Doherty explained this exception to the rule in R. v. N.S.:
Where an accused or the Crown seeks to review, by way of extraordinary remedies, decisions made at the preliminary inquiry, the moving party must normally demonstrate jurisdictional error: e.g. see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; Québec (Attorney General) v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305. However, where the moving party on the extraordinary remedy application is a “third party”, that is a party other than the accused or the Crown, and the challenged order finally decides the rights of the third party, extraordinary remedy relief will lie on the more traditional grounds of both jurisdictional error and error of law on the face of the record: R. v. Cunningham (2010), 2010 SCC 10, 254 C.C.C. (3d) 1, at paras. 57-58 (S.C.C.); Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at pp. 864-67.
[11] Justice Spies endorsed this very same passage from R. v. N.S. in Mullings, but she ultimately ruled that Mr. Mullings’ application for certiorari could proceed on the ground of “error of law on the face of the record,” notwithstanding that he did not fall into the Dagenais/Cunningham exception:
It is worth noting that courts have traditionally allowed certiorari applications to be brought on the basis of an error of law on the face of the record where it was the rights of a party other than the defendant or the Crown that were affected by the impugned order. That is not the case here. However, recent jurisprudence has signalled a shift away from such narrow application of this ground of certiorari.
[12] In the review of criminal matters, the prevailing jurisprudence dictates that review by way of prerogative writ is limited to “errors of jurisdiction”; certiorari is not available for the purpose of correcting “errors of law on the face of the record.” However, given the ruling in R. v. Mullings I will consider whether the hearing Judge made either sort of error.
(2) Did the Hearing Judge Commit a Jurisdictional Error or an Error of Law on the Face of the Record
i. An error of law by failing to conform to the “principles of judicial comity”;
[13] The Applicant alleges that the Hearing Judge failed to conform with the “doctrine of judicial comity” when His Honour failed to explain how he could come to a conclusion that the Applicant posed a significant threat to the safety of the public given that conclusion was at odds with a recent decision from a panel of the Review Board. This argument fails because the fora in question are not concurrent and the legal issue each forum dealt with is not the same.
[14] The power to order a stay of proceedings in the case of a permanently unfit accused is unequivocally unique to the court. By definition, the doctrine of judicial comity cannot apply because there is no concurrent jurisdiction involved. The Review Board is not empowered to make a “decision” about the merits of a stay; it is only empowered to recommend to the court that the latter conduct an inquiry into the matter.
[15] In addition, the Board’s recommendation is based on an opinion, not a “finding,” that the accused is permanently unfit and that he or she does not pose a significant threat to the safety of the public. Section 672.851(1) of the Code sets this out plainly:
672.851 (1) The Review Board may, of its own motion, make a recommendation to the court that has jurisdiction in respect of the offence charged against an accused found unfit to stand trial to hold an inquiry to determine whether a stay of proceedings should be ordered if
(a) the Review Board has held a hearing under section 672.81 or 672.82 in respect of the accused; and
(b) on the basis of any relevant information, including disposition information within the meaning of subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(a), the Review Board is of the opinion that:
(i) the accused remains unfit to stand trial and is not likely to ever become fit to stand trial, and
(ii) the accused does not pose a significant threat to the safety of the public.
[16] By contrast, not only is the court’s inquiry subject to a different standard of proof than the Board in respect of the two issues in question, its decision is also contingent on a third factor: whether issuing a stay would be “in the interests of the proper administration of justice.” The section states:
672.851 (7) The court may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied
(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;
(b) that the accused does not pose a significant threat to the safety of the public; and
(c) that a stay is in the interests of the proper administration of justice.
[17] During oral submissions, Ms. Bryan conceded the foregoing points but nonetheless asserted that it should be of concern that the Hearing Judge could come to a different conclusion than the Review Board on the same evidentiary basis. I have some sympathy for her position but this does not constitute either a jurisdictional error or an “error of law on the face of the record” that would justify the granting of certiorari.
ii. An error of law by doubting that the Applicant would be supervised;
[18] The Applicant alleges that the Hearing Judge committed an “error of law on the face of the record” by concluding, on the basis of a single incident where Mr. Raza had been found alone at home in October 2011, that the Applicant’s family would not provide adequate supervision.
[19] This claim fails on the ground that the assessment of the adequacy of supervision is an assessment of fact and not an application of law. The weighing of evidence falls squarely within the jurisdiction of the Hearing Judge and does not constitute either a jurisdictional error or an “error of law on the face of the record” that would justify the granting of certiorari.
iii. “Jurisdictional error” in its understanding of the test for significant threat;
[20] The Applicant alleges that the Hearing Judge “essentially…engaged in an exercise of speculation” by concluding that the Applicant’s family,
would fail to supervise Mr. Raza; that the failure of supervision would inevitably lead to an act of sexual misconduct....and that any act of sexual misconduct would be a real risk of serious physical or psychological harm occurring to individuals in the community.
[21] This conclusion is an assessment the court must make based on the facts in evidence. The court is not relying on any rule or principle of law when it determines whether there would be adequate supervision of Mr. Raza if a stay were granted and what risk might flow should the proposed supervision prove insufficient. The question only becomes legal when the court must determine whether those risks based on findings of fact, taken as a whole, constitute a “significant threat to the safety of the public.”
[22] I am concerned that the Hearing Judge came to the conclusions he did without addressing more fully the evidence before the Review Board and its conclusions. But this does not constitute either a jurisdictional error or an “error of law on the face of the record” that would justify the granting of certiorari. However, I would also say that the findings of the Hearings Judge should not in any way constrain any future hearing of the Review Board under section 672.851(1) of the Criminal Code or any future hearing of the Court under 672.851(7) of the Criminal Code considering any opinion coming from the Review Board with respect to the appropriateness of a stay.
iv. An error of jurisdiction by failing to consider the mandatory statutory criterion of “any effect on public confidence in the administration of justice”;
[23] The Applicant is correct that the Hearing Judge did not explicitly address the factor in s. 672.851(8)(b) of the Code “any effect on public confidence in the administration of justice”. However, this is of no moment given his finding with respect to Mr. Raza remaining a “significant threat.” The finding of “significant threat” precludes the possibility of a stay. There is no need for the court to go through the analysis required by the third branch because the answer to the second branch has decided the issue: it could never be in the interests of the proper administration of justice to order a stay where the court has found that the accused poses a significant threat to public safety.
(3) If certiorari lies to correct any or all of the errors alleged in this case, should the remedy be withheld because Parliament has limited the scope of review permissible under section 672.851?
[24] Having found no jurisdictional errors or an “error of law on the face of the record” it is not strictly speaking necessary to deal with this issue. However, I would note that (1) Parliament specifically intended there be no route of appeal from a decision where the court does not order stay and (2) the decision by the Hearing Judge was not a final decision that decided the Applicant’s rights. Both of these factors would suggest that even if I had found some jurisdictional error or an “error of law on the face of the record” I should not grant certiorari.
CONCLUSION
[25] For all of the foregoing reasons, the application is dismissed.
DUCHARME J.
Released: November 28, 2017
CITATION: R. v. Raza, 2017 ONSC 7090
COURT FILE NO.: M203/17 DATE: 20171128
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ASIM RAZA
REASONS FOR DECISION
DUCHARME J.
Released: November 28, 2017